Hobby Lobby attorney: We’d be thrilled to stay out of employees’ birth-control choices

posted at 12:01 pm on June 30, 2014 by Ed Morrissey

With progressives having a meltdown over the relatively narrow result of Hobby Lobby this morning, the attorney for the winning side provided a little reality check outside the court. Lori Windham represented Hobby Lobby’s owners in the court case, and CNN caught up with her outside shortly after the ruling was announced. Windham proclaimed this “a great day for religious freedom,” but when the CNN reporter offered the argument that the ruling allowed employers to get between a woman and her doctor on birth control, Windham bristled:

CNN: We heard the demonstrators today saying, “Look, the employers should stay out of our business,” that this decision will now essentially bring the employer into what should be a very private decision-making process between a woman and her doctor, now that the justices ruled that Hobby Lobby no longer has to cover four types of contraception. What do you have to say to the other side?

WINDHAM: Hobby Lobby would love to stay out of this, and leave this decision to a woman and her doctor. It’s the federal government that told them that they had to be involved and cover these things, even though they violated the Green family’s faith.

No kidding. Windham expertly skewers the “keep your rosaries off of my ovaries” argument in connection with the HHS mandate, which argues simultaneously that birth control is a private choice but that employers should directly foot the bill for it. A truly private choice would be between a woman and her doctor with the woman paying for whatever choice she makes. And that is still the case now, even post-Hobby Lobby, since this case has nothing to do with access to contraception — merely who pays the bill.

The Supreme Court ruling has some interesting language in it, mainly regarding the Religious Freedom Restoration Act (RFRA) that passed on an overwhelmingly bipartisan Senate vote (97-3) and was signed into law by Bill Clinton. HHS had argued that it didn’t apply to corporations, especially for-profit corporations, but the court rejected that argument.



They also found that the mandate provides a “substantial burden”:



In an interesting turn, though, the Court “assumes” that the mandate serves a compelling state interest — but does not find that free access to contraception is a compelling state interest. That may be left for other cases; in this instance, though, even with that assumption the government did not show that they employed the least burdensome method of serving it:





At least at first blush, this seems to be a powerful finding for later cases where the burden might be even more substantial — Little Sisters of the Poor, for instance. It essentially argues that the accommodation shows that the government did have less burdensome ways to satisfy the state interest when dealing with for-profit corporations, assuming it was compelling in the first place, and also assuming that the so-called accommodation relieves the substantial burden. This decision doesn’t actually find either conclusion.  Alito and his majority are basically making the point that HHS didn’t even bother to look for alternate ways to satisfy their interests, and so the court doesn’t even need to address these other issues.

That makes this a great day for limiting governmental power. How the Supreme Court rules on the other open issues later will determine whether this is indeed a great day for the freedom of religious expression. It’s certainly a great day for the RFRA though.

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So your argument is, that unless the company provides the employee with any contraceptive they want at no cost out of pocket, they will suffer an injury on the job?

The Schaef on June 30, 2014 at 2:51 PM

You do at all think that was my argument.

verbaluce on June 30, 2014 at 3:32 PM


Why does the state have to offer up free birth control? Are all medical costs totally covered by ACA. My daughter is on ACA and she must pay a $3500 deductble before any cost,save an annual physical, is covered. Why is birth control special? Shouldn’t food, shelter be provided? They’re somewhat more necessary than birth control. The difference between the left and so called right understanding of rights is that the left’s requires others to pay for these so called rights. The Bill of Rights does not force you to pay a farthing for my liberty, but your definition of rights would demand much of my wealth, paltry though it may be, to pay for the so called rights of othets.

xkaydet65 on June 30, 2014 at 4:21 PM

Yes, truly, liberals and progressives have lost their minds.

itsspideyman on June 30, 2014 at 4:27 PM

It’s a valid point.

verbaluce on June 30, 2014 at 3:24 PM

Not from a legal standpoint, it isn’t.

Those employees shouldn’t have to forfeit rights or protections as a condition of employment.

verbaluce on June 30, 2014 at 3:28 PM

They haven’t forfeited any rights at all. Not a single one. They cannot, however, force Hobby Lobby to give up their rights, either.

GWB on June 30, 2014 at 4:47 PM

When a baker or photographer is FORCED to service gay weddings which are against their religious views we still have a big problem in this country.

neyney on June 30, 2014 at 4:51 PM

The next thing the Greens (or similar religious for-profit employers) will probably try is to force employees to comply with certain religious tenets (no abortions, attend certain churches, etc.) as a condition of employment and then claim that any laws restricting that infringe on Hobby Lobby’s first amendment rights to practice religion.

jim56 on June 30, 2014 at 12:32 PM

One question: Did they do any of this before the Obama Administration and Department of Health and Human Services tried to force them to violate their consciences by killing babies? No?

Ah, then maybe you just successfully speared a nice, juicy straw man.

JoseQuinones on June 30, 2014 at 5:32 PM

When a baker or photographer is FORCED to service gay weddings which are against their religious views we still have a big problem in this country.

neyney on June 30, 2014 at 4:51 PM

Baker Forced to Make Gay Wedding Cakes, Undergo Sensitivity Training, After Losing Lawsuit

…Jack Phillips, the owner of Masterpiece Cakeshop, in Lakewood, Colorado was directed to change his store policies immediately and force his staff to attend the training sessions. For the next two years, Phillips will also be required to submit quarterly reports to the commission to confirm that he has not turned away customers based on their sexual orientation…

slickwillie2001 on June 30, 2014 at 6:12 PM

Please keep your vaginas out of my wallet and yes please take the opportunity to pay for your own baby killing. I want no part.

crosshugger on June 30, 2014 at 8:33 PM